Monday, May 09, 2011

Usually I have a good idea how Grits readers think about a topic when I put up a reader poll, but I was still surprised that 73% of Grits readers who responded (out of 276 of you) thought prosecutors should not have any more immunity from civil suits than defense attorneys. Just 4%, only 12 people, thought the current standard of "absolute immunity" is the right one, with 21% of you thinking "qualified immunity," the same as police officers, was the right place to draw the line. I would joke that I thought I had more than 12 prosecutor readers, but two line prosecutors have emailed me privately to say that they don't support absolute immunity, either, though they didn't want to go on the record. As it turns out, quite a few folks right about now - from the legislature to the judiciary to academia - think the issue of prosecutorial immunity is ripe for review. Perhaps it's an issue the Speaker of the House or Lieutenant Governor assign to a legislative committee as an interim charge; it deserves fuller exploration.

As if on cue to give me a newshook for the reader poll, the Texas Tribune has a story today about a capital murder case being retried after the original conviction was overturned at the US Supreme Court because of prosecutorial misconduct. The catch: The same prosecutor is retrying the case some 30 years later.The article by Brandi Grissom opens:

For the second time in three decades, a Texas court is preparing to decide whether Delma Banks Jr. should be executed for the 1980 shooting death of 16- year-old Richard Whitehead.

The U.S. Supreme Court overturned Banks’ death sentence in 2004, finding that the Bowie County prosecutors who tried the case suppressed evidence and deliberately covered up their mistakes for decades. “It’s really a remarkable tale of misconduct — just about every kind of thing the prosecution could do that was improper,” said Robert C. Owen, co-director of the Capital Punishment Center at the University of Texas School of Law, who was one of Banks’ appellate lawyers.

Now, the same district attorney’s office — including one of the same prosecutors who was involved in the original trial — is again seeking the death penalty for Banks. Despite the Supreme Court’s rebuke, James Elliott, who has been a prosecutor on the case for more than 30 years, has maintained that he will pursue Banks until he “gets what he deserves.”

The prosecutorial misconduct in question involves failure to disclose exculpatory evidence - in particular inducement given to confidential informants in exchange for damning testimony:

In 1999 — almost 20 years after the trial — a federal judge forced Bowie County to open its case records, and Banks’ lawyers discovered a transcript showing that Cook’s testimony had been extensively rehearsed and coached. They also learned that the police had paid Farr, an informant who had an unreliable record, $200 for his role in the investigation.

Farr, in an affidavit, said he was afraid that the police would arrest him on drug charges. In exchange for the money, and to avoid jail, he agreed to set up Banks, he said, persuading him to drive to Dallas to get a gun. Prosecutors allowed Cook and Farr to lie in court and never told jurors that their information was false, the Supreme Court found. Cook denied on the stand that anyone had helped him with his testimony, and Farr said he had not been paid for his help in the case. During closing arguments, Elliott told jurors that they should believe the two witnesses.

In arguments before the Supreme Court, state lawyers did not dispute that Cook had been coached and that Farr was paid for his help. But they said Banks’ lawyers were at fault for not uncovering the information sooner.

The Supreme Court ruled that without the testimony of the two witnesses, Banks might not have been sentenced to death. “It has long been established that the prosecution’s ‘deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice,’” Justice Ruth Bader Ginsburg wrote in the court’s majority opinion.

In cases involving "deliberate deception of a court and jurors by the presentation of known false evidence," in the words of the Supreme Court majority, why shouldn't prosecutors be liable? Since he's still practicing and even retrying the case, it's a safe bet prosecutor James Elliott was never rebuked by the state bar, despite the direct rebuke from the nation's high court.

Just as with Charles Sebesta in the Anthony Graves case, Mr. Elliot's example makes me wonder why the State Bar doesn't discipline prosecutors when appellate courts overturn criminal cases because of egregious misconduct? In Sebesta's case, the Fifth Circuit's opinion (pdf) found misconduct by both the DA and the Texas Ranger who was the lead investigator, declaring that "Perhaps even more egregious than District Attorney Sebesta’s failure to disclose Carter’s most recent statement is his deliberate trial tactic of eliciting testimony from Carter and the chief investigating officer, Ranger Coffman, that the D.A. knew was false and designed affirmatively to lead the jury to believe that Carter made no additional statement tending to exculpate Graves."

The US Supreme Court accuses James Elliott of "presentation of known false evidence," but he faces no consequence.The Fifth Circuit said Charles Sebesta elicited testimony he "knew was false," but the state bar failed to discipline him. Whether it's holding them civilly liable, pulling the plug on their license at the state bar, prosecution, or some other consequence, surely it's obvious there shouldn't be "absolute immunity" for these types of prosecutorial misconduct. I don't know what it will take to bust that nut, but surely there must be some way to hold prosecutors accountable when they knowingly cheat to win.

MORE (5/10): Jordan Smith at the Austin Chronicle lets me know that she covered the Delma Banks case extensively when it went before SCOTUS, event traveling to Washington to hear oral arguments. Her recollection: "the state's argument re why Banks didn't deserve relief was rather stunning. Also, the complete lack of investigation by the Bowie DA's office was ridiculous." See Smith's coverage here and here.

20 comments:

Anonymous
said...

Interesting post grits. You'requestion is a double edged sword,in that tons of convictions aretossed out b/c the defendant rec'dineffective assistance of counsel.Yet, these attys are still practicing, still representingcriminal defendants.

And what ever happened to all thecourt appointed attorneys who pleadout the Tulia defendants? Are theystill practicing?

The answer to all these questions,is that since "lawyers regulate themselves" the bar does a terriblejob at ferreting out bad lawyers.Lawyers sitting on local grievance committees in judgment of fellow local lawyers. Not a good system.

One suggestion - and one that would be wildly unpopular with both defense and prosecution - is that all appellate opinions should include not only the names of the appellate counsel (which is standard practice once the case is publishsed or available on Westlaw/Lexis) but that trial counsel on both sides should also be named. So when the opinion says that someone did or did not do something, we all know who that person is. At the moment, 99% of appellate opinions don't do that.

And I don't know about "tons" of cases being tossed because of IAC - it's not that common, and poor performance by the attorney is not enough: the appellant also has to show that the errors of the attorney caused prejudice as well. In many case the performance will be found to be inadequate but the appellate courts opine (sometimes correctly. sometimes not) that the errors did not make a difference to the result.

7:05, this post nowhere defends ineffective defense lawyers, but the difference is a) the state bar sometimes actually disciplines for that, unlike prosecutorial misconduct, and b) criminal lawyers are liable in civil court to their clients (which is why they all carry liability insurance) whereas prosecutors have "absolute immunity."

Hi there Boys and Girls, Yes its true we do have an avenue to explore relief for ineffective defense counsel, but if you tell a judge that the prosecutor just up and lied all you get is "Well suppers on the table Y'all be good now." As far as who will prosecute the errant DA, I suggest something like the Internal Affairs office for the State. Boy that would meet with some prosecutor resistance. In fact I dont think there is a county in Texas that wouldnt scream at the top of their lungs about that. Of course His royal Hienie King Rick would never allow something that made that much sense, so no danger there. There is my 2 cents worth

The Appellate Courts are covering for their brothers and sisters. GFB had 12 ADAs chime in voting to "keep thangs the same". And only two ADAs grew a pair of (plactic) balls and whispered their opinion. Now that's either the monster of cowardness or an attempt to be best buds with Grits?

Most interesting was learning that only 99% of the Appellate decisions list both sides names. WTF? Take a stand and demand that 'all' names be published or consider changing Texas to Texachina, Texasussia. Thanks.

Perhaps the answer to your question lies in the comment made by the dissenters in Banks that "there is very little evidence in the record that the prosecutors actually knew of [the witness's] payment by [the police.]" Brady claims frequently turn on information known by law enforcement that is imputed to, but never actually known by, the prosecution. For the most part, prosecutors' offices depend on cases being investigated by autonomous law enforcement agencies and later filed with the DA's office. While in an ideal world Brady material would always be included in those police reports, that's just not always the case.

I said it before and I say it again the "REAL CRIMINALS" who should be in prison are as follows: Judges, Da's office personnel and the curent prison employess. Then let's take a look at the law makers next.

How about Federal Prosecutors? Turn it into a Federal gig when state officials cannot properly use the law. Create an office that works outside of the state and federal Attorney line of march and then put a few felonies on the books that apply solely to DA/ADA/Judge types. All jury trials, and solely composed of exonerees.

Sorry to comment so late after everyone is asleep and on to the next thing, but this is just the tip of the iceberg, a microcosm. Even when unusually heinous, that's about what it takes to get any press. The systemic corruption (not only endemic) is so thick nothing will be done. Because We The Poor People long ago were dumbed down or didn't care or forgot or gave up; it led to elitist officials. The State bar does nothing to sanction anyone until something publicly heinous comes out---they're worse than the Catholic Church. The Texas Legislature that voted in the State Bar was nearly all lawyers; it's void. It's tyranny. Beating the citizen beats working. Now they cover each other, do what's expeditious for the court, and could care less about jurisprudence in favour of the defendant citizen. Because we stopped policing them, because we stopped tar & feathers, they run amok. you've heard the expression, "hanging is too good for them"? In Latin, 'Duh.' Grits is wonderful, but it ain't in the public eye. The citizen will continue to take the plastic-bead-filled stick to the forehead, while everyone insists they're just doing their job. What oversight? What Bill of Rights?

My thought is that, if we are really seeking justice in Texas, the state should pay the expenses both sides in criminal trials and/or totally eliminate prosecutorial immunity. It would eliminate the problem of "how much justice can you afford" for defendants and quell the "win at any cost" attitudes of some prosecutors.

When I started as an AUSA in the Western District (I'm no longer there), I was warned that if the Fifth Circuit actually printed your name in an opinion as having committed misconduct, DOJ in Washington automatically initiated an ethics investigation. If, however, the court merely referred to the "AUSA" or the "prosecutor" - no investigation automatically ensued (of course DOJ could decide to investigate the matter sua sponte). I was told that the Fifth Circuit judges were acutely aware of this policy and took great care in deciding whether to single out an offending prosecutor by name - reserving this for the more egregious cases.

It is common knowledge that Harris County prosecuters,cops,judges do whatever the hell they please.Unless your Chuck Rosenthal and are so blatantly corrupt that you have to go.The no tolerance,might makes right mentality has been milked for all its worth.

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